Sanchez v. United States, 3766.

• Decision Date: 07 June 1943
• Docket Number: No. 3766.,3766.
• Citation: 134 F.2d 279
• Parties: SANCHEZ v. UNITED STATES.
• Court: U.S. Court of Appeals — First Circuit

134 F.2d 279 (1943)

SANCHEZ v. UNITED STATES.

No. 3766.

Circuit Court of Appeals, First Circuit.

March 11, 1943.

Writ of Certiorari Denied June 7, 1943.

Pedro E. Sanchez Tapia, pro se.

Adolfo Valdes and Francisco Ponsa Feliu, Asst. U. S. Attys., Philip F. Herrick, U. S. Atty., all of San Juan, Puerto Rico, for appellees.

Before MAGRUDER, MAHONEY and WOODBURY, Circuit Judges.

Writ of Certiorari Denied June 7, 1943. See ___ U.S. ___, 63 S.Ct. 1325, 87 L.Ed. ___.

WOODBURY, Circuit Judge.

This is an appeal from a judgment of the District Court of the United States for Puerto Rico sentencing the defendant to a term of imprisonment, and probation thereafter, after a jury had found him guilty on all three counts of an indictment. In the first count the defendant and his wife were charged with unlawfully, knowingly and willfully soliciting an excessive fee from a veteran of the World War in violation of 38 U.S.C.A. § 551.¹ In the second count they were charged, in substantially the same language, with receiving an excessive fee in violation of the same statute. In the third count they were charged with unlawfully, knowingly and willfully procuring the making of a false and fraudulent affidavit "pertaining to a matter within the jurisdiction of the Administration of Veterans' Affairs of the United States", in violation of 18 U.S.C.A. § 81.² The jury found the defendant's wife not guilty on all counts, the finding of not guilty on the third count being by direction of the court.

There is evidence that in 1936 the defendant approached one Lorenzo Rivera, a World War veteran, and said to him "I will make a claim for your insurance, and you give me half of what I get"; that thereafter a claim under Rivera's policy of United States government life insurance was presented to the Administrator of Veterans' Affairs, but was denied; and that eventually an action on this policy was brought against the United States in the District Court of the United States for the District of Columbia. In this action Rivera, who was represented by local counsel, obtained a judgment for $3,000, the face amount of his policy. This judgment was paid, and in February, 1939 the amount thereof, less 10% allowed by the court for counsel's fee, was remitted by check to Rivera in Puerto Rico. When his check arrived Rivera, who was illiterate and in ill health, endorsed it over to his brother-in-law, an accountant, with instructions to use the proceeds thereof to pay his (Rivera's) debts.

Among the claims against Rivera presented to the brother-in-law for payment was one made by the defendant's wife for services which she alleged her husband had rendered with respect to Rivera's claim under his insurance policy. Originally she asked for $700, but the brother-in-law balked at paying so much, and eventually, with Rivera's consent, he gave her $200 in cash. Thereafter the defendant's wife twice visited Rivera personally when he was confined in a hospital. On the first of these visits she demanded, on behalf of her husband, one-half of the amount recovered on the policy "for the work he had done in making that claim", as Rivera expressed it, and on the second visit Rivera said he gave her $20. In his testimony Rivera summarized the events which took place at these visits as follows: "She said, `I went to get half of the money over there, and they gave me $200' and I told her I was going to send for some more money. Then they sent me a telegram, a telegraphic money order, and I cashed it at a small restaurant that was there, and she called me out on the balcony of the hospital, and I gave her the $20."

The evidence as to the third count is that in 1940 the defendant, accompanied by a Notary, called at Rivera's house and induced Rivera to execute a certain affidavit which the defendant had prepared and which, after execution, the defendant carried away and subsequently destroyed. The registry of affidavits kept by the Notary before whom this affidavit was executed, which was introduced into evidence as an exhibit, shows that this affidavit was to the effect that the affiant "did not pay any money to any one" other than to his attorney in Washington, "for services rendered to him in a case for collection of federal insurance in his veteran's case."

The defendant contends that in order to show a violation of the statute under which the first two counts of the indictment were laid the government must allege and prove that he actually prepared and executed some paper necessary to Rivera's application to the Veterans' Administration and he says that there is no such evidence in the record. We do not agree with either of these propositions.

It seems to us that the only reasonable inference to be drawn from the testimony is that the defendant did in fact render some required assistance to Rivera in the preparation and execution of papers necessary to his application to the Veterans' Administration. But the court below charged the jury, in spite of a request to charge to the contrary, that "it doesn't make any difference whether papers were actually prepared or not, if the fee was solicited for the preparation." Although this statement was pretty obviously meant to apply only to the case against the wife, still, since the defendant argues that he was prejudiced by it, we shall dispose of his contention on the legal rather than on the factual ground.

The statute provides that "payment to any attorney or agent for such assistance as may be required in the preparation and execution of the necessary papers in any application to the Veterans' Administration shall not exceed $10 in any one case"; and that "Any person who shall, directly or indirectly, solicit, contract for, charge, or receive, * * * any fee or compensation, except as herein provided, shall be guilty of a misdemeanor."

The obvious purpose of Congress in passing this statute was to protect World War veterans from being charged excessive fees for aid in prosecuting applications to the Veterans' Administration for benefits under the various statutes passed for their relief and assistance. We find nothing in the statute itself or in its context to indicate any broader Congressional purpose or intent, that is to say, any intent to limit the fees chargeable to World War veterans for aid in any matter except the preparation of papers relating to applications of the above nature. Thus the obvious function of the clause under consideration is to limit the statute's application to matters of the sort which Congress had in mind, that is to say, to differentiate and distinguish fees charged for the preparation and execution of papers in applications to the Veterans' Administration from fees charged for matters of any other sort. It follows that the actual preparation of any papers relating to an application to the Veterans' Administration is not an element of the crime defined. It is enough to support a conviction under this statute for the government to show that an excessive fee was solicited, contracted for, charged or received for assistance, whether or not such assistance was ever in fact rendered, "in the preparation and execution of the necessary papers in any application to the Veterans' Administration."

Our conclusion is confirmed by the absurdity which would result if we adopted the construction of the statute contended for by the defendant. If his construction is correct then one who solicited, contracted for, charged or received an excessive fee for assistance of the kind specified would be guilty of a crime only if he in some measure earned his fee, while one who also solicited, contracted for, charged or received an excessive fee for similar assistance, but who in fraud of his client or principal did nothing whatever to earn it, would be guiltless. We cannot suppose that Congress intended any such extraordinary result.

The defendant's principal contention with respect to the third count is that the statute under...